AN APPEAL PROCEDURE FOR ART. 6.4: SOME THOUGHTS AND OPTIONS - - PowerPoint PPT Presentation

AN APPEAL PROCEDURE FOR ART. 6.4: SOME THOUGHTS AND OPTIONS

Christina Voigt

• A. BACKGROUND
• B. SIX REASONS WHY
• C. OPTIONS

• A. BACKGROUND

• 1. DÉJÀ VU…
• CDM: disputes between private project participants and

parties, and parties and the EB

• Negotiations on “procedures, mechanism and institutional

arrangements for appeals against the decisions of the CDM Executive Board”: significant progress, but no decision due to uncertain future of the CDM and political differences.

• Changes:
• Paris Agreement in place and in force,
• End of KP second commitment period in 2020,
• (Likely) transition of the CDM into the larger framework of

the art. 6.4 mechanism

• 2. FROM CDM TO ART. 6.4
• Art. 6.4 objectives: Scope for diverse and complex

legal relationships amongst a mix of private and public stakeholders.

• Art. 6.4 activities likely have to deal with and address

many of the same concerns (if not more) that were experienced by CDM participants and stakeholders.

• “In-house” appeal mechanism: Could help

increasing the legitimacy of the governing structure for art. 6.4 and gaining broader support for cooperative approaches

• B. SIX REASONS WHY…

• 1. Greater accountability
• 2. Enhance legitimacy
• 3. Better accessibility
• 4. More (relevant) expertise
• 5. Greater flexibility
• 6. Greater consistency

• 3. OPTIONS

• 1. POSSIBLE FUNCTIONS, GROUNDS OF

APPEAL, AND OUTCOMES

Administrative Review “Judicial Review” Complaints Mechanism Dispute Settlement Mechanism

Nature and Function Ground of Appeal Outcome

• 1. Administrative Review

Consideration of appeals against the decisions of the

• art. 6.4 supervisory body

regarding the approval, rejection or alteration of requests for registration of

• art. 6.4 activities, approval of

methodologies and the (approval of) issuance of A6.4ERs

• 1. The SB exceeded its

competence (acted ultra vires),

• 2. The SB committed a

procedural error,

• 3. The SB did not follow

this RMPs or incorrectly interpreted or applied or breached one or more RMPs for art. 6.4,

• 4. The SB erred on a

question of fact available to the SB at the time of the decision,

• 5. Members of the SB are

not qualified;

• 6. Members of the SB are

faced with a conflict of interests, which makes impartial decisions impossible;

• 7. Breach of confidentiality
• 1. Affirm the decision of

the SB; or

• 2. Remand the request for

registration or issuance to the SB for further consideration;

Nature and Function Ground of Appeal Outcome (Decisions and/or

• rders)
• 2. “Judicial” Review

Review of the decisions of the art. 6.4 supervisory body regarding the approval, rejection or alteration of requests for registration of

• art. 6.4 activities, approval of

methodologies, and the (approval of) issuance of A6.4ERs ditto Ditto, plus

• 3. Reverse the decision

by the SB

Nature and Function Ground of Appeal Outcome (Decisions and/or

• rders)
• 3. Complaints

Mechanism Hearing of complaints by art. 6.4 participants (i.e. parties and private entities) and affected non-party stakeholder, such as individuals and communities, who believe that they have been, or are likely to be, adversely affected by an art. 6.4 activity Assess allegations of negative effects to people or the environment of art. 6.4 activities and review whether the SB followed its RMPs

• 1. Make a determination

about whether there was any harm,

• 2. If so, whether a violation
• f the art. 6.4 RMPs was

linked to the harm;

• 3. Issue an assessment or

investigation report,

• 4. Make recommendations

Nature and Function Ground of Appeal Outcome (Decisions and/or

• rders)
• 4. Dispute Settlement

Mechanism Settlement of disputes between states, or private entities/investors and states. Could involve arbitration, mediation, conciliation, or

• ther forms of alternative

dispute resolution (ADR). Breach of treaty or contractual norms related to

• art. 6.4. Claims would need

to substantiate that in implementing art. 6.4 activities protected interests

• r rights have been affected.

This would include (a) a statement of the facts supporting the claim; (b) the points at issue; (c) the relief

• r remedy sought; and (d)

the legal grounds or arguments supporting the claim.

• 1. Reject the claim, or
• 2. Issue an award/opinion

• 2. BODY OR INSTITUTION

Independent, impartial and expert-based. Options:

• Creation of a new body under the authority of the CMA;
• Delegation of the authority to the Executive Secretary/SB to

establish an ad-hoc or standing appeals panel (in consultation with the Bureau);

• Designation of the Art. 15 Committee.